TTAB Denies Petition to Cancel Registration of President XI Likeness Due to Lack of Statutory Standing
Jinchun Ma, appearing pro se, fended off a petition for cancellation of his registration for the mark shown immediately below, for "pet accessories," including "canvas pouches for holding disposable bags to place pet waste in." Petitioner Zhejiang Import, allegedly a Chinese “trade organization for various pet food and pet products that are manufactured in China and sold internationally, including to the United States," asserted six claims:false suggestion of a connection with Chinese President Xi (claiming that the Chinese characters for “Xi Da Da” are a nickname for President Xi), abandonment, nonuse, lack of consent (2)(c), failure-to-function, and fraud. Zhejiang Import & Export Pet Food and Product Industry Association v. Jinchun Ma, Cancellation No. 92076309 (October 6, 2025) [not precedential] (Opinion by Judge Jennifer L. Elgin).
To establish entitlement to petition to cancel Respondent Ma’s registration, Zhejiang Import had to demonstrate: (1) its claims fall within the zone of interests protected by the statute (i.e., it has a “real interest” in the outcome of the proceeding); and (2) damage proximately caused by the registration (i.e., a reasonable basis for its belief in damage). See Curtin v. United Trademark Holdings, Inc., 137 F.4th 1359, 1367 (Fed. Cir. 2025). For purposes of its analysis, the Board assumed (without deciding) that the image and likeness in fact referred to President Xi.
The Board first noted that neither Petitioner Zhejiang Import nor its members are President Xi, nor do they have any direct connection to President Xi. "Mere Chinese citizenship is not sufficient to demonstrate a connection." [Compare Jewelers Vigilance, 823 F.2d at 483, in which a trade association of suppliers, wholesalers, distributors and retailers of DeBeers diamonds and diamond jewelry was found entitled to assert a Section 2(a) claim against registration of a mark incorporating the name DEBEERS.]
Thus, the interests of Petitioner and its members do not fall within the zone of interests protected by any of the asserted claims. The asserted harms are “purely derivative of misfortunes visited upon a third person by the defendant’s acts” and insufficient to demonstrate proximate harm to Petitioner or its members. Luca McDermott, 102 F.4th at 1327 (citing Lexmark, 572 U.S. at 133).
The Board then found that the alleged harm to Zhejiang Import and its members resulting from Ma's mark incorporating the purported image of President Xi and Chinese characters also was "speculative and highly attenuated." "Petitioner has failed to prove that its fear of retribution from the Chinese government based on the registration of Respondent’s mark is reasonable." "Moreover, it is not enough for Petitioner to prove merely that it or its members are in the same business as Respondent. *** It also must establish that it has a present or prospective interest in using a similar mark or term."
The only proof of Zhejiang Import's purported bona fide intent to use a similar mark consisted of vague testimony and a partial TSDR printout of its application to register the mark shown below.
There was no documentary evidence corroborating the development of the mark or of Zhejiang Import’s intent to use it in the United States.
Moreover, despite similarities in structure (namely, non-English characters above and below a male face, with English text underneath, and designs framing the bottom of the face), Petitioner’s proposed mark and Respondent’s mark are not at all similar. Thus, Petitioner’s assertion that the challenged registration poses a “potential obstacle” to its application or use of the mark is not reasonable under the circumstances.
The Board acknowledged that "a plaintiff’s entitlement to a statutory cause of action is 'a low threshold,'" but Zhejiang Import failed to clear that hurdle.
Read comments and post your comment here.
TTABlogger comment: The literal portion of the challenged mark reads: "OPPOSITION TO TYRANNY BEGINS WITH CONTEMPT FOR DICTATORS" at the top, and "BUNS WILL CERTAINLY REVEAL THEIR FILLINGS" on the bottom.
Text Copyright John L. Welch 2025.
posted by John L. Welch @ 10/08/2025
6 comments
6 Comments:
This is not the case nor the forum for it, but SCOTUS would be wise to revisit Lexmark and its "proximate cause" analysis.
I don't understand why the pending application wasn't enough - that's a very distinctive design (unless the opinion cited evidence otherwise). Where's the line?
It does raise an interesting question - if you have standing, can you assert false suggestion with someone that isn't you? That would have been cleaner. I don't like a standing denial based on a decision on the merits of the substantive claim, that it was not close enough to be confusing. Have they done that in similar situations?
Even if the allegation of damage was reasonable, the first prong of the Lexmark test wasn't met. If Ritchie v. Simpson were still viable, the opposer might have made a similar disparagement/scandalous claim because the mark makes fun of Xi. But disparagement and scandalousness are now kaput.
I also think that the Board's consideration of standing is like considering a claim under Rule 12(b)(6). A claim for relief that is futile can be knocked out for failure to a state claim, so why not knock out a futile claim of standing?
OK, and the application was filed after the cancellation was filed and there hadn't yet been a refusal of it under 2(d) citing the challenged mark, plus the petitioner also fairly conceded they weren't similar ("Despite the differences ... [the petitioner] believes that Registrant's Mark might be used by Registrant to block the registration of Trademark Application No. ..."). I'm okay with these facts meaning the application wasn't enough for standing. Is it the law that a pending application only provides standing if the mark you are challenging has been cited against it?
Until the pending application is refused, it does not establish any damage to the applicant. So yes, it doesn't support standing.
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